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Law in Action on social media prosecutions

A short post to say that I was interviewed by Joshua Rozenberg for today’s Law in Action programme on BBC Radio 4. I was debating, with Nadine Dorries MP, a recent series of criminal prosecution (see my post from last week) brought against social media users. The debate centred on the implications for freedom of speech as protected by Article 10 of the European Convention on Human Rights.

The full programme can be listened to here (UK only, I think) – the social media section is from around 20 minutes in. You may have guessed from my post as well as this interview that I think the current state of the law under the Communications Act 2003 is causing very significant problems for freedom of expression.

Relatedly, I am chairing an interesting panel debate tomorrow (Wednesday) evening on this very topic. I understand the event is full but you can submit questions ahead of the event to or follow for live tweets @HumanRightsLawA ; #lawandtwittering

Thank you Adam, I wholeheartedly concur with your critique of this unnecessary and anachronistic offence. It is pleasing to learn that opinion at the CPS public consultation seems to be coalescing around the belief that prosecutions should usually only be brought in cases that involve on-line campaigns targeting individuals in such a way that they are placed under fear or distress. Causing offence, or even gross offence, is surely not a serious enough wrong to argue that it is ‘necessary in a democratic society’ to interfere with freedom of expression by criminalising such conduct? Imposing a criminal sentence on individuals – and often rather young individuals it should be noted – is not a proportionate response to the causing gross offence (and to whom it must be asked?). The potentially devastating effects of ‘cyber-bullying’ are sadly becoming known to the public. The tragic recent case of the 15 year old girl from Vancouver being driven to suicide after a protracted online campaign of harassment and blackmail underscores this point. But as you pointed out, these types of conduct could be dealt with under the Protection from Harassment Act and other legislation that outlaws hate speech and threats of various kinds.

A second point should be made here about the recent prosecutions of Matthew Woods and Azhar Ahmed. Even if could be argued that their prosecutions were ‘necessary in a democratic society’ (which I doubt) it must be questioned whether the interferences with their rights to freedom of expression were ‘prescribed by law’. As evidenced by the CPS public consultation there is clearly much uncertainty as to what the scope of the s127 offence actually is. It must be asked: if not even the prosecution authorities are clear about the contours of the offence, how are members of the general public supposed to be? There appears to be a strong prima facie argument that these prosecutions were inconsistent with the Rule of Law and that they amounted to infringements of the defendants’ rights under article 10 of the ECHR.

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David Williamsonsays:

It’s good to know that you were interviewed by Joshua Rozenberg in Law in Action program. I listen to the whole program and learn a lot of things. Thanks for another great post.

I am glad cyber stalking / harassment, where damage to another person is forseeable, was distinguished from other postings which, although they may be unpleasant (even “grossly offensive”), are not forseeably DAMAGING to another person. I think damage must be a key element to resolving the free speech puzzle presented by the new technology.

A “grossly offensive” tweet or posting may be distressing to some or many but will usually not be forseeably damaging, even if it was intended to be offensive. Individuals and groups who are offended by jokes in poor taste, or by robust political and religious views, should just “man up” or avoid postings which are likely to cause them offence. Much humour depends on shock value and saying the un-sayable and surely it must be wrong to criminalise it..

Nadine Dorries did not entirely seem to grasp the issue when she implied that prosecutions should proceed based upon a subjective test of whether a complainant had been distressed by a posting.

NO, Nadine! Prosecution should proceed only in cases where DAMAGE to another person is forseeable.

I would hope that the damage test would be age sensitive so that special consideration would be given to children and teenagers who are being cyber bullied. Intervention in these cases should be swift and certain. The CPS and the police would be better employed allocating scarce resources to that type of case rather than prosecuting Chambers, Woods, et al

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.